UNITED STATES COURT OF APPEALS for the Fifth Circuit
_____________________________________
No. 94-60058 _____________________________________
W.H. AVITTS, ET AL.,
Plaintiffs-Appellees,
VERSUS
AMOCO PRODUCTION CO., ET AL,
Defendants,
AMOCO PRODUCTION CO.,
Defendant-Appellant.
******************************************
LAVERNE LANG, ET AL.,
EDWARD J. LUBOJACKY, ET AL,
Defendant-Appellant. ******************************************
VERNON A. SMITH, ET AL,
TETSU TINDEL,
O.F. WESTINGHOUSE, ET AL.,
2 JOSEPH E. DURSO, ET AL.,
GERALDINE LOUDEN,
*******************************************
O.L. SURFACE, ET AL.,
AMOCO PRODUCTIONS CO., ET AL.,
***********************************************
3 PATTY ANN WALKER,
Plaintiff-Appellee,
AMOCO PRODUCTION CO., ET AL.,
STEVE TOWNSEND, ET AL.,
*************************************************
MELVIN CARPENTER, ET AL.,
***************************************************
4 JOSEPH A. DURSO, ET AL.,
Plaintiffs-Appellees.
******************************************************
MARGARET L. DURSO,
JIMMY DEAN LONG, ET AL.,
*****************************************************
5 JOHN W. COLLINS, ET AL.,
No. 94-60059 _____________________________________
APACHE CORPORATION, MW PETROLEUM CORPORATION and AMOCO PRODUCTION COMPANY,
Defendants-Appellants.
______________________________________________________
Appeals from the United States District Court for the Southern District of Texas (G-90-317, etc.) ______________________________________________________ (May 3, 1995) Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.
PER CURIAM:2
1 Circuit Judge of the Eighth Circuit, sitting by designation. 2 Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on
6 This matter comes before the Court on a consolidated appeal
from interim orders entered by the district court. In 94-60058,
Appellants appeal from the entry of a preliminary injunction
requiring them to complete a "phase II" environmental study. In
94-60059, Appellants appeal from an order requiring them to pay
approximately $650,0003 in interim costs and attorney's fees. We
find that the district court lacked subject matter jurisdiction
over this action, and therefore vacate the orders of the district
court and remand with instructions to dismiss this action, without
prejudice, for lack of jurisdiction.
I. BACKGROUND
Appellees originally filed suit in Texas state district court
to recover monetary damages for alleged injuries to their property
caused by the defendants' oil and gas operations in the West
Hastings Field. The matter was removed to the Southern District of
Texas on the basis that Appellees' complaint stated,
It is expected that the evidence will reflect that the damages caused by the Defendants are in violation of not only State law but also Federal law.
(emphasis supplied). Despite the nebulous referral to "federal
law," the complaint stated no cause of action which could be read
to confer federal question jurisdiction on the district court. In
the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 3 The court awarded $328,266 in attorney's fees and $315,875.99 in expenses. Avitts v. Amoco Production Co., 840 F. Supp. 1116, 1124 (S.D. Tex. 1994).
7 fact, in concert with their notice of removal Appellants filed a
Fed. R. Civ. P. 12(e) motion for a more definite statement, which
inter alia stated,
Plaintiffs claim Defendants violated "State law" and "Federal law" in allegedly causing these spills. However, Plaintiffs fail to specify which State or Federal laws Defendant allegedly violated. Consequently, Defendants cannot possibly formulate a response or know what defenses may apply.
Although the district court summarily denied Appellants' motion for
a more definite statement, Appellees subsequently filed a first
amended complaint, this time omitting all reference to federal law.
Although the Appellees' complaint has been amended several times
during the pendency of this litigation, no federal question has
ever been stated.4
II. DISCUSSION
"Any civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may be removed by the defendant or the defendants, to the district
court of the place where such action is pending." 28 U.S.C. §
1441(a). Original jurisdiction over the subject matter is
mandatory for the maintenance of an action in federal court.
Subject matter jurisdiction may not be waived, and the district
court "shall dismiss the action" whenever "it appears by suggestion
4 Plaintiff's last complaint, the seventh amended complaint, contains state law causes of action for "nuisance," "trespass," "negligence, "breach of contract" and "fraud and misrepresentation" and prays for actual damages in the amount of ten million dollars and exemplary damages in the amount of one hundred million dollars.
8 of the parties or otherwise that the court lacks jurisdiction of
the subject matter." Fed. R. Civ. P. 12(h)(3).
Original jurisdiction, in non-maritime claims, lies where the
conditions of 28 U.S.C. §§ 1331 or 1332 are satisfied. In the
present action, the court claims original jurisdiction pursuant to
§ 1331, also known as federal question jurisdiction. There is no
dispute that original jurisdiction does not lie under § 1332,
diversity of citizenship, because complete diversity does not
exist. Under 28 U.S.C. § 1331, "[t]he district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."
Plaintiff is generally considered the master of his complaint,
and "whether a case arising...under a law of the United States is
removable or not...is to be determined by the allegations of the
complaint or petition and that if the case is not then removable it
cannot be made removable by any statement in the petition for
removal or in subsequent pleadings by the defendant." Great
Northern Ry., Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237,
239 (1918); see also American Fire & Casualty Co. v. Finn, 341 U.S.
6, 14, 71 S.Ct. 534, 540 (1951). Of course, this does not mean
that a plaintiff can avoid federal jurisdiction by simply "artfully
pleading" a federal cause of action in state law terms. See
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394
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UNITED STATES COURT OF APPEALS for the Fifth Circuit
_____________________________________
No. 94-60058 _____________________________________
W.H. AVITTS, ET AL.,
Plaintiffs-Appellees,
VERSUS
AMOCO PRODUCTION CO., ET AL,
Defendants,
AMOCO PRODUCTION CO.,
Defendant-Appellant.
******************************************
LAVERNE LANG, ET AL.,
EDWARD J. LUBOJACKY, ET AL,
Defendant-Appellant. ******************************************
VERNON A. SMITH, ET AL,
TETSU TINDEL,
O.F. WESTINGHOUSE, ET AL.,
2 JOSEPH E. DURSO, ET AL.,
GERALDINE LOUDEN,
*******************************************
O.L. SURFACE, ET AL.,
AMOCO PRODUCTIONS CO., ET AL.,
***********************************************
3 PATTY ANN WALKER,
Plaintiff-Appellee,
AMOCO PRODUCTION CO., ET AL.,
STEVE TOWNSEND, ET AL.,
*************************************************
MELVIN CARPENTER, ET AL.,
***************************************************
4 JOSEPH A. DURSO, ET AL.,
Plaintiffs-Appellees.
******************************************************
MARGARET L. DURSO,
JIMMY DEAN LONG, ET AL.,
*****************************************************
5 JOHN W. COLLINS, ET AL.,
No. 94-60059 _____________________________________
APACHE CORPORATION, MW PETROLEUM CORPORATION and AMOCO PRODUCTION COMPANY,
Defendants-Appellants.
______________________________________________________
Appeals from the United States District Court for the Southern District of Texas (G-90-317, etc.) ______________________________________________________ (May 3, 1995) Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.
PER CURIAM:2
1 Circuit Judge of the Eighth Circuit, sitting by designation. 2 Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on
6 This matter comes before the Court on a consolidated appeal
from interim orders entered by the district court. In 94-60058,
Appellants appeal from the entry of a preliminary injunction
requiring them to complete a "phase II" environmental study. In
94-60059, Appellants appeal from an order requiring them to pay
approximately $650,0003 in interim costs and attorney's fees. We
find that the district court lacked subject matter jurisdiction
over this action, and therefore vacate the orders of the district
court and remand with instructions to dismiss this action, without
prejudice, for lack of jurisdiction.
I. BACKGROUND
Appellees originally filed suit in Texas state district court
to recover monetary damages for alleged injuries to their property
caused by the defendants' oil and gas operations in the West
Hastings Field. The matter was removed to the Southern District of
Texas on the basis that Appellees' complaint stated,
It is expected that the evidence will reflect that the damages caused by the Defendants are in violation of not only State law but also Federal law.
(emphasis supplied). Despite the nebulous referral to "federal
law," the complaint stated no cause of action which could be read
to confer federal question jurisdiction on the district court. In
the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 3 The court awarded $328,266 in attorney's fees and $315,875.99 in expenses. Avitts v. Amoco Production Co., 840 F. Supp. 1116, 1124 (S.D. Tex. 1994).
7 fact, in concert with their notice of removal Appellants filed a
Fed. R. Civ. P. 12(e) motion for a more definite statement, which
inter alia stated,
Plaintiffs claim Defendants violated "State law" and "Federal law" in allegedly causing these spills. However, Plaintiffs fail to specify which State or Federal laws Defendant allegedly violated. Consequently, Defendants cannot possibly formulate a response or know what defenses may apply.
Although the district court summarily denied Appellants' motion for
a more definite statement, Appellees subsequently filed a first
amended complaint, this time omitting all reference to federal law.
Although the Appellees' complaint has been amended several times
during the pendency of this litigation, no federal question has
ever been stated.4
II. DISCUSSION
"Any civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may be removed by the defendant or the defendants, to the district
court of the place where such action is pending." 28 U.S.C. §
1441(a). Original jurisdiction over the subject matter is
mandatory for the maintenance of an action in federal court.
Subject matter jurisdiction may not be waived, and the district
court "shall dismiss the action" whenever "it appears by suggestion
4 Plaintiff's last complaint, the seventh amended complaint, contains state law causes of action for "nuisance," "trespass," "negligence, "breach of contract" and "fraud and misrepresentation" and prays for actual damages in the amount of ten million dollars and exemplary damages in the amount of one hundred million dollars.
8 of the parties or otherwise that the court lacks jurisdiction of
the subject matter." Fed. R. Civ. P. 12(h)(3).
Original jurisdiction, in non-maritime claims, lies where the
conditions of 28 U.S.C. §§ 1331 or 1332 are satisfied. In the
present action, the court claims original jurisdiction pursuant to
§ 1331, also known as federal question jurisdiction. There is no
dispute that original jurisdiction does not lie under § 1332,
diversity of citizenship, because complete diversity does not
exist. Under 28 U.S.C. § 1331, "[t]he district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."
Plaintiff is generally considered the master of his complaint,
and "whether a case arising...under a law of the United States is
removable or not...is to be determined by the allegations of the
complaint or petition and that if the case is not then removable it
cannot be made removable by any statement in the petition for
removal or in subsequent pleadings by the defendant." Great
Northern Ry., Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237,
239 (1918); see also American Fire & Casualty Co. v. Finn, 341 U.S.
6, 14, 71 S.Ct. 534, 540 (1951). Of course, this does not mean
that a plaintiff can avoid federal jurisdiction by simply "artfully
pleading" a federal cause of action in state law terms. See
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2, 101
S.Ct. 2424, 2427 n.2 (1981). However, it is also plain that when
both federal and state remedies are available, plaintiff's election
9 to proceed exclusively under state law does not give rise to
federal jurisdiction.
In the present case, there is no doubt that Appellees have
chosen to pursue only state law causes of action. The only mention
of federal law in any of Appellees' complaints was the above
mentioned oblique reference to Appellants' violation of unspecified
federal laws. No federal cause of action has ever been asserted,
and it is plain that removal jurisdiction under 28 U.S.C. § 1441
simply did not exist. The district court had no jurisdiction over
the subject matter of the complaint, and the action should have
been immediately remanded to state court.
Despite the obvious lack of original jurisdiction under §
1331, two grounds for maintaining federal jurisdiction have been
forwarded. First, in a motion to dismiss filed by Appellants, the
court was asserted to have maintained jurisdiction under 28 U.S.C.
§ 1367(c) which provides in part,
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if--
M M M M
(3) the district court has dismissed all claims over which it has original jurisdiction.
This provision is plainly inapplicable because, by its terms, it
presupposes that the district court obtained supplemental
jurisdiction over the state law claims via original jurisdiction
over federal claims arising from the same case or controversy. As
stated above, the district court has never had original
10 jurisdiction over any of the claims in this action because no
federal claims have ever been asserted.
Second, subject matter jurisdiction was supposedly achieved
through Appellees' reference to CERCLA and the Oil Pollution Act of
1990 (OPA) in the Joint Pretrial Order (PTO). Notwithstanding the
highly questionable applicability of either of these statutes to
the facts and circumstances of this case, adoption of this argument
would require us to rewrite the PTO. Under the PTO's plain terms,
CERCLA and OPA are offered only as a means to calculate the
"Measure of Damages" owed to the Appellees. Appellees never
asserted a cause of action under either statute, and subject matter
jurisdiction cannot be created by simple reference to federal law.
Subject matter jurisdiction can be created only by pleading a cause
of action within the district court's original jurisdiction. No
such cause of action has ever been plead in this matter, and
therefore subject matter jurisdiction is plainly absent.
III. CONCLUSION
The district court lacked subject matter jurisdiction over
this action and was therefore without authority to enter its
orders. The orders of the district court are vacated, and this
matter is remanded to the district court with instructions to
dismiss Appellee's complaint without prejudice.
VACATED and REMANDED.